Professional Documents
Culture Documents
In the
Ninth Circuit
Plaintiff-Appellant,
v.
Defendants-Appellees.
_______________________________________
Appeal from a Decision of the United States District Court for the Western District of Washington,
No. 2:16-cv-00623-RSM Honorable Ricardo S. Martinez
BRIEF OF APPELLANT
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Pursuant to Ninth Circuit Rule 28-2.1, the undersigned counsel for LHF
certifies that LHF Productions, Inc., having at address at 318 N. Carson St., #208,
Carson City, NV 89701, has a direct pecuniary interest in the outcome of the case.
disqualification or recusal.
s/ David A. Lowe
LOWE GRAHAM JONESPLLC
Lowe@LoweGrahamJones.com
701 Fifth Avenue, Suite 4800
Seattle, Washington 98104
T: 206.381.3300
F: 206.381.3301
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TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ..........................................................i
V. ARGUMENT ................................................................................................... 7
A. FACTS ................................................................................................... 7
iii
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VI. CONCLUSION.............................................................................................. 34
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TABLE OF AUTHORITIES
Cases
Blum v. Stenson,
465 U.S. 886 (1984).......................................................................................24
v
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Hall v. Bolger,
768 F.2d 1148 (9th Cir. 1985) .........................................................................3
Jackson v. Axton,
25 F.3d 884 (9th Cir. 1994) .............................................................................3
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Quesada v. Thomason,
850 F.2d 537 (9th Cir. 1988) .........................................................................23
Russell v. Price,
612 F.2d 1123 (9th Cir. 1979) .........................................................................3
Sorenson v. Mink,
239 F.3d 1140 (9th Cir. 2001) ................................................................ 30, 31
U.S. v. Hinkson,
585 F.3d 1247 (9th Cir. 2009) .......................................................................27
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I. STATEMENT OF JURISDICTION
(A) These five consolidated appeals are all actions for copyright
infringement under the Copyright Act, 17 U.S.C. 101, et seq., which arise under
the Constitution, laws, or treaties of the United States, and over which the District
in-part LHF Productions, Inc.s motions for default judgment, statutory damages,
and attorneys fees in all five cases. Accordingly, this Court has jurisdiction
notice of appeal . . . must be filed . . . within 30 days after the judgment or order
appealed from is entered. The District Court entered final judgments in all five
cases on February 15, 2017. ER 1, 16, 31, 46, 61. LHF Productions, Inc. filed its
notices of appeal for all five cases on March 17, 2017. ER 76-90. Thus, the Notices
of Appeal was timely filed and this Court may properly exercise subject matter
jurisdiction.
(D) This Court granted LHF Productions, Inc.s motion to consolidate the
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Circuit precedent.
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An award for statutory fees under the Copyright Act is reviewed for abuse of
discretion. See Russell v. Price, 612 F.2d 1123, 1131-32 (9th Cir. 1979), cert.
denied 446 U.S. 952 (1980). Likewise, a district courts decision whether to award
attorneys fees under the Copyright Act is reviewed for an abuse of discretion.
Columbia Pictures Indus. v. Krypton Broad. of Birmingham, Inc., 259 F.3d 1186,
1197 (9th Cir. 2001). In deciding whether to award fees, the district court should
unreasonableness (both in the factual and legal arguments in the case); and the
finding of fact.' Entm't Research Grp. v. Genesis Creative Grp., 122 F.3d 1211,
121617 (9th Cir. 1997) (quoting Fantasy, Inc. v. Fogerty, 94 F.3d 553, 556 (9th
district court's decision are reviewable de novo. Fogerty II, 94 F.3d at 556
(quoting Hall v. Bolger, 768 F.2d 1148, 1150 (9th Cir. 1985)). The district court's
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interpretations of the Copyright Act are also reviewed de novo. Perfect 10, Inc. v.
producer of the motion picture London Has Fallen for theatrical exhibition, home
entertainment and other forms of distribution. The motion picture was first
published March 4, 2016. London Has Fallen is protected by the Copyright Act in
registration filed for the theatrical release of London Has Fallen submitted
March 11, 2016 and confirmed received by the Copyright Office March 14, 2016.
Plaintiff is the proprietor of all right, title and interest in the motion picture
London Has Fallen, including the exclusive rights to reproduce and distribute to
the public as well as the right to sue for past infringement. London Has Fallen
contains wholly original material that is copyrightable subject matter under the
laws of the United States. It is an action thriller directed by Babak Najafi and stars
Gerald Butler, Morgan Freeman and Aaron Eckhart, among others. It is easily
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The film has significant value and has been created, produced and lawfully
sale in commerce, playing in theaters and available for rental and/or purchase from
Amazon, iTunes and Netflix, among others. Thousands of people have participated
in the films production and release, and these same people rely on the Copyright
Act to ensure that the film earns revenue through lawful release and dissemination.
Thus, the unlawful reproduction and dissemination amounts to stealing from these
people who created this film, chilling the incentive to create more works of artistic
expression. The Copyright Acts damages provisions are intended to dissuade this
unlawful activity, but the courts must consistently apply them in order for them to
protocol, explained in more detail below. When the complaints were filed, none of
the defendants were known to LHF by name; however, all defendants were later
identified after LHFs investigation. LHF settled its disputes with a number of the
other defendants, but several refused to participate despite LHFs diligent efforts
and their apparent liability. In each case, the District Court below entered orders of
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fundamental precepts of copyright law. When granting statutory fees under the
Copyright Act in each case, the District Court below incorrectly held that the
defaulted Defendants conspired with one another to infringe the same digital copy
of LHFs motion picture. There was no such allegation in any of the cases. As a
Court incorrectly awarded the statutory amount of $750 total for all of the
of 17 U.S.C. 504(c)(1) and Ninth Circuit law, which provides that a copyright
regardless of the number of separate infringements of that work. Despite the District
Courts holdings to the contrary, there was never an allegation that each of the
defaulting Defendants were jointly and severally liable for the separate acts of
Next, the District Court abused its discretion when it flatly ignored evidence
reduced LHFs request without a justifiable basis. Specifically, the District Court
awards from other cases from the very same district that LHF submitted with its
requests.
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The District Court also abused its discretion when, without justification, it
concluded that LHFs counsels hours were based on block billing entries and
unreasonable, disregarding entirely the time spent by the legal assistant and
arbitrarily cutting LHFs attorney time by more than 60%. The District Courts
conclusion overlooked a number of facts made clear in the cited legal authority and
supporting documents. The District Courts rationale here again runs directly
Accordingly, LHF respectfully requests that this Court instruct the District
Court to (1) assess the statutory award of Section 504(c)(1) statutory damages
separately against each defaulted Defendant for each instance of infringement; (2)
consider the reasonable hourly rate commensurate with the evidence of prevailing
market rate of $450 per hour; and (3) adopt Plaintiffs hours as reasonable, or at
V. ARGUMENT
A. FACTS
cases, now consolidated. See Amended Complaints, ER 567, 587, 607, 627, 646.
As such, the following facts are presumed as true. Geddes v. United Financial
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producer of the motion picture London Has Fallen for theatrical exhibition, home
entertainment and other forms of distribution. The motion picture was first
published March 4, 2016. ER 569, 589, 609, 629, 647 5. London Has Fallen is
effective March 14, 2016. Id. 6. Before the registration issued, London Has
Fallen was initially protected by the Copyright Act in registration PAu 3-789-521,
effective Oct. 7, 2014, as well as the copyright registration filed for the theatrical
release of London Has Fallen submitted March 11, 2016 and confirmed receipt by
subject matter under the laws of the United States. It is an action thriller directed
by Babak Najafi and stars Gerald Butler, Morgan Freeman and Aaron Eckhart,
designers and editors and with professional-grade cameras, lighting and editing
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When LHF filed each complaint, it was unaware of the true names of the
Defendants. Id. 10. However, each Defendant was known to Plaintiff by the
and the date and at the time at which the infringing activity of each Defendant was
34, 595 35, 615 35, 634 28, 653 29. The hash checksum facilitates the
particular date and time. Id. Each IP address was observed and associated with
significant infringing activity and associated with the exchange of other titles on
peer-to-peer networks. Id. The volume, titles and persistent observed activity
associated with each Defendants IP address indicates that each Defendant was not
a transitory or occasional guest, but was either the primary subscriber of the IP
address or someone who resides with the subscriber and/or is an authorized user of
For all relevant times each Defendant was the sole party responsible for
and in control of each IP address. Id. 10 (emphasis added). LHF collected logs
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of infringing transactions and the IP addresses of the users responsible for copying
and distributing the audiovisual work, London Has Fallen. The IP addresses, hash
value, dates and times, ISP and geolocation information attached to each Amended
Complaint (ER 586, 606, 626, 645, 664) correctly reflects the subscribers using the
IP addresses and that they were all part of a swarm of users that were
further indicates that anyone using or observing activity on the IP address would
likely be aware of the conduct of each Defendants. ER 570, 590, 610, 630, 649
12. Also, the volume and titles of the activity associated with each Defendants IP
address indicates that each Defendant is not a child, but an adult, often with mature
data sources to ensure that each Defendant was associated with each respective IP
address obtained from the IPS, including Google address mapping, social media,
and mailing letters to each Defendant inviting settlement discussions. ER 571, 591,
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After the District Court granted expedited discovery, the true names and
below:
Appeal No. District Court Case No. Defaulted Defendants and Citations to
Amended Complaint
17-35249 16-cv-1015 1. Lauren Burks (ER 572 18)
2. William Aely (Id. 19)
3. Tamika Greene (Id. 21)
4. Curtis Stout (Id. 22)
5. Donald Smith (ER 573 24)
6. Lucy Gathu (Id. 25)
7. Douglas Cottrell (Id. 26)
8. David Alvarez Jr. (Id. 27)
17-35250 16-cv-865 9. Paul Cain (ER 592 19)
10. Boun Bosakouonthong (Id. 22)
11. Samantha Smith (ER 593 24)
12. Andrew Bradley (Id. 25)
13. Edward Brown (Id. 27)
17-35253 16-cv-623 14. Sikotorski Roman (ER 612 20)
15. Stanley Ruguian (Id. 21)
16. Kiel Ramthun (Id. 22)
17. Nicholas English (ER 613 28)
17-35243 16-cv-621 18. Roselen Torres (ER 632 22)
19. Sherwin Mendoza (Id. 23)
17-35237 16-cv-552 20. Aaron Lightner (ER 651 22)
21. Donald Reddish (Id. 23)
22. Alexander Cauthorn (Id. 24)
different addresses during the relevant time periods, and save for the allegations for
purposes of permissive joinder (see e.g., ER 576-578 36-42) there was never an
allegation that these Defendants had conspired or colluded with one another so as
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to cause one singular act of infringement. Rather, LHF sought permissive joinder
to permit a more efficient management its claims against the several defaulted
Defendants and to reduce burdens on District Court below. See e.g., ER 578 24.
Again, after LHF learned of the identities of the Defendants, it sent letters to
each address inviting each potential infringer to settle the dispute and encouraging
obtaining legal representation. See e.g., ER 571, 591, 611, 631, 650 16. Some
defendants were voluntarily dismissed (see e.g., ER 478 Dkts. 11-13), others
obtained counsel (id. Dkts. 9, 10), and across these five cases, twenty-two
defaulted, as shown above. While the cases have certain common facts and legal
issues to warrant joinder and consolidation, each case had its share of unique
hours, and reversal of its holding of joint and several liability. As explained below,
practice.
LHF issued summonses for Defendants Burks, Aely, Greene, Stout, Smith,
Gathu, Cottrell, and Alvarez, Jr. ER 749 at Dkts. 23-24. These individuals were
each served during November 2016. ER 534 (Aely), ER 538 (Alvarez, Jr.), ER 540
(Burks), ER 542 (Greene). Indeed Mr. Stout (see ER 749. Dkts. 28, 50) and Gathu
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(Dkts. 30, 51) required additional efforts to serve under alternative methods of
service. Id.; see also ER 525 (Proof of Service for Stout) and ER 527 (Proof of
Service for Gathu). Further, LHF negotiated waivers of service of process with
Defendants Smith and Cottrell. ER 749 Dkts. 37, 38. These Defendants did not
sign for anyone besides themselves. See ER 530 (Smith) and ER 531 (Cottrell).
After refusing to participate in the litigation, LHF sought, and the District Court
entered, entries of default for each individual Defendant. ER 749-750 Dkts. 46, 47,
60-64, 69, 70. This case proceeded against other individuals in the normal course
of litigation. See e.g., ER 749 Dkt. 26 (Answer and Jury Demand), ER 751 Dkt. 52
(Voluntary Dismissal).
Bradley, and Brown. ER 759 at Dkt. 25. Save for Defendant Bradley, who waived
service of process on his own accord (ER 532; ER760 Dkt. 37), these individuals
(Bosakouonthong), ER 548 (Smith), ER 550 (Brown). LHF sought, and the District
Court entered, entries of default for each individual Defendant. ER 761 Dkts. 53-
throughout the case (ER 760-761 Dkts. 26, 27, 28, 35, 60) and proceeded
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throughout the case against other individual Defendants. See e.g., ER 761 Dkt. 59
English. ER 768 at Dkt. 21. Each individual was served during September 2016.
required alternative methods of service. ER 770 Dkts. 39, 42, 53; see also ER 529.
Again, despite LHFs efforts to ensure their participation, the District Court, on
motion from LHF, entered entries of default for each individual Defendant. ER 771
case proceeded against other individuals with no effect from the defaulted
Dkt. 21. These individuals were each served during September 2016. ER 558
sought, and the District Court entered, entries of default for each individual
Defendant. ER 779 Dkts. 27-32. Again, the case proceeded with the collective
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understanding that each Defendant was an individual infringer. See e.g., id Dkt. 33
784 Dkt. 19. These individuals were each served during August 2016. ER 562
the litigation, LHF sought, and the District Court entered, entries of default for
each individual Defendant. ER 784-785 Dkts. 29-37. Indeed, the case proceeded as
if each other defendant was an individual infringer. See e.g., ER 785 Dkt. 40
In each of the five cases, LHF and the District Court proceeded on the basis
that each Defendant was individually liable for copyright infringement. However,
the District Court ignored these basic facts when it incorrectly applied 17 U.S.C.
401(c)(1), and failed to recognize the efforts of LHFs counsel in its award of
attorneys fees.
(1) ownership of a valid copyright and (2) copying of constituent elements of the
work that are original. Kelly v. Arriba Soft Corp., 336 F.3d 811, 817
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(9th Cir. 2003). LHFs Amended Complaints, the allegations of which must be
The Copyright Act provides a plaintiff the option of electing either statutory
the court has wide discretion in determining the amount of statutory damages to
be awarded, constrained only by the specified maxima and minima. Peer Intl
Corp. v. Pausa Records, Inc., 909 F.2d 1332, 1336 (9th Cir. 1990) (quoting Harris
v. Emus Records Corp., 734 F.2d 1329, 1335 (9th Cir. 1984)(emphasis added). A
plaintiff may recover statutory damages whether or not there is adequate evidence
willfully are properly deemed to be true once the court enters a default. Derek
Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 702 (9th Cir. 2008); Salyer
v. Hotels Com GP, LLC, 2015 U.S. Dist. LEXIS 82171 (W.D. Wash. 2015). Here,
damage awards. However, the District Court made no findings of willfulness, and
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Amended Complaint. See ER 580 52, ER 600 53, ER 620 53, ER 639 46,
ER 658 47.
Judgment (ER 4, 19, 34, 49, 64) concluded that LHF established each Defendants
liability (id. at page 4 of each Order), that default judgment was appropriate (id. at
p. 5), and that the minimum statutory damage award of $750 was appropriate. Id.
at p. 6. However, the Court found each Defendant jointly and severally liable for
(Id.) This violates established federal statutory law and Ninth Circuit precedent.
The law is clear on this point. 17 U.S.C. 504(c)(1) expressly provides that
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(emphasis added). Thus, when statutory damages are assessed against either (1) one
defendant, or (2) a group of defendants held to be jointly and severally liable, each work
infringed may form the basis of only one award, regardless of the number of separate
Here, there was no allegation or evidence that each of the defaulting Defendants
was jointly and severally liable for the separate acts of infringement committed by
any other party in this or any other case involving the same motion picture or file of that
motion picture. Rather, each Defendant was separately accused of infringing at least
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Indeed, LHFs claim for relief in each case prayed for judgment against each
In other words, while being part of the same BitTorrent swarm made
copyright infringement while in that swarm, for which, because they were found
Section 504(c)(1). The District Court was also required to address the impact of the
The clarity of this principle is set forth in binding Ninth Circuit law. In
Columbia Pictures, 106 F.3d at 294, the Court held that where separate
infringements for which two or more defendants are not jointly liable are joined in
(Emphasis added), revd on other grounds sub nom. Feltner v. Columbia Pictures
Television Inc., 523 U.S. 340 (1998). In Columbia, this Court specifically
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Inc., 833 F.3d 1180, 1191 (9th Cir. 2016), where the Ninth Circuit clearly explained
the difference between a situation where joint and several liability for copyright
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jointly and severally liable pair of infringers was joined in the same
action and liable for the same infringements.
Friedman, 833 F.3d at 1190.
Accordingly, the law is clear and well settled that where separate infringements
for which two or more defendants are not jointly liable are joined in the same action,
separate awards of statutory damages would be appropriate. Id. The precise situation
in the instant case was discussed by the Friedman Court by citation to a prominent
treatise hypothetical:
Again, here, each of the twenty-two (22) Defendants, as well as any other Defendants in
any case in the country brought by LHF for copyright infringement of the same motion
picture, and even the same digital file, was separately named and accused of a separate
act of infringement, and is not jointly and severally liable for the infringement of others.
Accordingly, LHF was, and is, entitled to a separate statutory damage award against
each Defendant in each of the cases irrespective of what may have happened with any
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LHF further submits that at no time prior in the cases below or in more than
Washington has it been suggested that multiple defendants in a case are jointly and
severally liable and that, accordingly, should share in a single statutory damage award
under Section 504(c)(1). To the contrary, in each of the other default judgments in
done in this case, the Western District of Washington recognized the separate
infringing act of each defendant and issued a separate statutory damage award
accordingly. See, e.g., Criminal Prods., Inc. v. Darrell Gunderman et al., No. 16-
cv-729, Dkt. 77 (W.D. Wash. Feb. 22 2017), Criminal Prods., Inc. v. Norman et
al., No. 16-cv-860, Dkt. 34 (W.D. Wash. Feb. 22, 2017) Criminal Prods., Inc. v.
Romines et al., 16-cv-1016, Dkt. 50 (W.D. Wash. Feb. 22, 2017); QOTD Film
Investment Ltd., v Star et al., No. 16-cv-371, Dkts. 64-67 (W.D. Wash. Oct. 5
2016); Cobbler Nevada, LLC v. Chapman et al., No. 15-cv-1614, Dkts. 52, 54
(W.D. Wash. Sept. 9, 2016); Cobbler Nevada, LLC v. Tu, et al., 15-cv-1420, Dkts.
54, 56, 58, 60, 62 (W.D. Wash. Sept. 9, 2016); Dallas Buyers Club, LLC v. Eric
Nydam, et al., No. No. 15-cv-133, Dkt. 45 (W.D. Wash. Aug. 8 2016) (collective
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Given that LHF specifically pleaded that each Defendant was separately
liable for copyright infringement, and that in each prior case in the Western
District of Washington the District Court had found separate liability and awarded
separate statutory damages under Section 504(c)(1) in accord with Ninth Circuit
precedent, it was not correct for the District Court below to find that the defaulted
Defendants in each case had somehow colluded with one another to infringe one
work. Thus, this Court should reverse the District Courts Orders with instructions
of any fee award by a district court. Intel Corp. v. Terabyte Intl, Inc., 6 F.3d 614,
623 (9th Cir. 1993); see also Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc.,
886 F.2d 1545, 1556 (9th Cir. 1989), cert. denied, 494 U.S. 1017 (1990) (In
setting a reasonable attorneys fee, the district court should make specific findings
of the rate and hours it has determined to be reasonable.). In cases where there
for a district court to reduce a fee award below the lodestar simply because the
damages are small. Quesada v. Thomason, 850 F.2d 537, 540 (9th Cir. 1988). In
particular in the context of lesser damages, the Ninth Circuit has noted the need for
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attorney fees otherwise copyright holders will not prosecute infringement actions
when the amount at stake is low. Magnuson v. Video Yesteryear, 85 F.3d 1424,
In all cases, the District Courts orders concluded that LHF should be
awarded attorneys fees. See ER 9, 23, 39, 54, 69. In evaluating the relevant factors
reasonableness of the rate requested, the District Court stated that LHF did not
present any evidence that this [$450/hr.] is the prevailing rate in this community,
and similar cases in this District suggest that a lower rate is appropriate. ER 10,
25, 40, 55, 70 (emphasis added). The District Court apparently ignored the
In each case and for each defendant, attorney David Lowe provided
declarations outlining fees and costs, pre-apportioned for each defendant, outlining
203, 219, 235, 251, 268, 284, 301, 318, 335, 352, 369, 385, 402, 419, 436, 452,
468, 484, 500, and 516. Each Lowe Declaration included the identical Exhibits A,
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to the Internet Protocol identifications for each individual case.1 The District Court
ignored declarations of counsel, survey evidence and examples from other cases in
the jurisdiction:
Declaration of David A. Lowe indicating that his usually rate for 2015 and
2016 was $510, but that he has reduced that rate to $450 for these cases. See
representative Lowe Declaration, ER 100-106 7.
2014 annual AIPLA survey (most recent available) showing that mean
(average) billing rate for a private law firm partner of 15-24 years of
experience was $468 per hour and the average rate for an attorney in the
Seattle area (Other West) is $411. ER 109, 110.
June 2015 LexisNexis Enterprise Legal Management Report (most
recent) showing the median partner billing rate for various legal work
(including IP work) at approximately $450 per hour. ER 111, 112.
BWP Media USA Inc. v. Rich Kids Clothing Company LLC, No. 13-cv-
1975 (W.D. Wash 2015) ($450 per hour local rate); Getty Images (US),
Inc. v. Virtual Clinics, 2014 U.S. Dist. LEXIS 60935 (W.D. Wash. 2014)
($465 per hour for experienced partner); Little Genie Prods. LLC v. PHSI
Inc., 2014 U.S. Dist. LEXIS 91089, 27-28 (W.D. Wash. 2014) ($420 per
hour).
1
For purposes of efficiency, one exemplar set of these exhibits has been included
in the Excerpts of Record. LHF reserves the right to supplement the Record should
this Court deem it necessary to review the ISP Invoices.
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This evidence established that the requested $450 rate is a reasonable and
relevant community.2 See United Steelworkers of Am. v. Phelps Dodge Corp., 896
F.2d 403, 407 (9th Cir. 1990) (Affidavits of the plaintiffs attorney and other
other cases, particularly those setting a rate for the plaintiffs attorney, are
satisfactory evidence of the prevailing market rate.). Noteworthy is that the Ninth
Circuit has specifically cautioned courts against arbitrarily setting a low rate in
contravention of the evidence. See Welch v. Metro. Life Ins. Co., 480 F.3d 942, 947
comparable skill and experience in the relevant community, and one deemed
reasonable for in this case, should be $450, and requests modification of its default
2
The District Court also apparently did not recognize another series of cases in the
Western District of Washington where $450 was determined to be a reasonable
rate: Cobbler Nevada, LLC v. Does, No. 15-cv-1420 (Dkts. 54, 56, 58, 60, 62);
Cobbler Nevada, LLC v. Does, No. 15-cv-1404 (Dkts. 48, 50, 52); Cobbler
Nevada, LLC v. Does, No. 15-cv-1406 (Dkts. 37, 39); Cobbler Nevada, LLC v.
Does, No. 15-cv-1408 (Dkts. 45, 47); Cobbler Nevada, LLC v. Does, No. 15-cv-
1421 (Dkts. 48, 50, 52); Cobbler Nevada, LLC v. Does, No. 15-cv-1443 (Dkts. 70,
72, 74, 76, 78); Cobbler Nevada, LLC v. Does, No. 15-cv-1614 (Dkts. 52, 54).
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Without expressing any opinion on whether or not the fees claimed were
reasonable, we must vacate the district courts fee award and remand the matter so
that the district court may provide a reasoned explanation supporting the amount of
fees awarded. Columbia Pictures 106 F.3d at 296. The District Court concluded
that LHFs hours were based on block billing entries and therefore unreasonable
(ER 11, 26, 41, 55, 70); completely cut the hours worked by the legal assistant
(id.); and arbitrarily cut attorney time by more than 60% in each case. See ER 11
5.3 hours to 2 hours), ER 56 (cutting 6.6 hours to 2 hours), and ER 73 (cutting 5.7
hours to 2 hours). This conclusion ignored a number of facts made clear in the
cited legal authority and supporting documents. This decision alone by the District
drawn from facts in the record and therefore must be overturned. See U.S. v.
Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009) (en banc).
(9th Cir. 2007), cited by the District Court, it is improper to apply an across-the-
board reduction to all requested hours. The Court in Welch held that the district
court clearly erred in applying a 20 percent reduction to all of plaintiffs hours. Id.
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Second, as was the case in the cited Welch case, the majority of the hours
Virtually all of the time entries pertained to describing work related to single,
discrete tasks that are not considered block billings. See, for example, the
Defendant Cauthorn:
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ER 516 10.
Indeed, there are only two possible examples of block billing: .3 hours
with process server regarding same; File summons and 1.3 hours spent on 1.24.17
for Legal research regarding default judgment, copyright statutory damages and
reasonable attorneys fees; Review file; Review default; Work on motion for
default judgment including supporting declarations and proposed order. But even
if one or both of these forms the basis for a draconian 60% across the board
reduction in hours, the Court is required to explain how or why . . . the reduction .
. . fairly balance[s] those hours that were actually billed in block format. Sorenson
Third, to the extent that the District Court finds appropriate to reduce time
set forth specifically the basis for its reduction for each of the claimed tasks.
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Sorenson, 239 F.3d at 1146 (9th Cir. 2001) (A district court has wide latitude in
determining the number of hours that were reasonably expended by the prevailing
review of the fee award.) That was not done in any of these cases, leaving an
inadequate record for appeal. To the extent that the Court below maintains its
Fourth, and finally, LHF respectfully submits that viewed in its entirety, the
overall expended grand total of less than 6 hours in attorney time and less than
three hours in paralegal time over more than seven (7) months prosecuting this
case against each separate Defendant is a reasonable number of hours. As set forth
in the above-noted example and the record, this time includes engaging in more
than a dozen separately documented tasks. While it is certainly true that there is
much redundancy in the overlapping factual and legal arguments made in many of
the submission, it cannot be disputed that except for the original and amended
complaints, the motion for expedited discovery and ISP subpoena and motion to
request for waiver, wavier and summons, discussions with process server regarding
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order for default, and each motion for default judgment, supporting declaration and
proposed order.
Plaintiff treated each case against each separate Defendant with careful
both prior to filing the original complaint and again prior to filing the amended
each original complaint (see e.g., ER 667 11), LHFs counsel was required to use
activity for each separate Defendant. The requested .5 hour time spent on each
set forth in the supporting declarations and Amended Complaints (see e.g., ER
faith effort to confirm, on information and belief, that the identified subscriber was
the person responsible for the infringing conduct or, in the alternative, that another
party with access to the IP address of the subscriber was responsible. This
involved careful review of the type and frequency of observed BitTorrent activity,
Google address mapping and review of county records to confirm residence status,
and frequently social media review. Id. The requested .7 hour time spent on each
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Just looking at these two reasonable time entries, totaling 1.2 hours, exceeds
the arbitrary 1 hour awarded by the Court for lead counsel time. This award
completely sets at naught the dozen other detailed activities for which very modest
Default Judgement Papers and working with the process services, as needed, in
denying any award for the approximately 3 hours worked on the case attributable
Again, it is noteworthy is that roughly this same number of hours has been
found reasonable and appropriate in the nearly 70 prior declaratory judgment cases
spanning dozens of cases over the last two years. See e.g., cases and docket entries
cited above.
Rather than looking at the reasonableness of the time spent for each separate
Defendant, or looking at each separate task and what was involved for each
defendants against whom default judgment was sought. See e.g., ER 13. But even
using the District Courts math, again, less than 6 hours in attorney time and less
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than three hours in paralegal time over more than seven (7) months prosecuting
Plaintiff respectfully submits that the District Court abused its discretion
arbitrarily awarding a single hour for lead counsel, a single hour for the associate,
and not awarding any time for the paralegal that worked on the case, in
VI. CONCLUSION
For all the foregoing reasons, the Court should reverse the District Court and
remand the case with instructions to enter default judgment in favor of LHF,
properly ascribe statutory fees based on individual violations of the Copyright Act,
and consider the evidence submitted by LHF in support of attorney billing rate and
hours spent for a reasonable award of attorneys fees against the defaulted
Defendants.
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I certify that this brief contains 7,796 words, and was written in Times New
32.
/s/David A. Lowe
David A. Lowe
Email: Lowe@LoweGrahamJones.com
701 Fifth Avenue, Suite 4800
Seattle, Washington 98104
T: 206.381.3300
F: 206.381.3301
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consolidated cases arising from U.S. District Court for the Western District of
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with the Clerk of the Court for the United States Court of Appeals for the Ninth
I certify that all participants in the case are registered CM/ECF users and
s/ Kirstin Largent
37